What happens when idiots don’t understand torts

The story goes this way, Hiroyuki Joho, an 18 year old kid, ran across the train tracks to catch another train. He misjudged the speed and proximity of another oncoming train and self-selected himself for Carousel. Unfortunate for him. Unfortunate also for a 58 year old woman who was standing on a neighboring platform, just minding her own business, when WHAM:

A large part of his body was propelled about 100 feet onto the southbound platform where it struck 58-year-old Gayane Zokhrabov from behind, knocking her to the ground. She sustained a shoulder injury, a leg fracture, and a wrist fracture. Zokhrabov v. Park, 2011 Ill. App. LEXIS 1298 (Ill. App. Ct. 1st Dist. 2011)

Zokhrabov sued Joho’s estate for negligence. <

The "Cafe Mom" piece ends with this editorial question:

I’m sorry, but who goes around suing a dead teen whose body was ripped to shreds in one of the most gruesome ways imaginable?

The answer to that question is “an innocent person, who did nothing wrong, but has some injuries to pay for.”

Lets look at the case.

In her suit, Zokhrabov claimed that Joho:

<blockquote>”(a) carelessly and negligently failed to keep a proper lookout for approaching trains; (b) carelessly and negligently ran in the path of an approaching [Amtrak] train; or (c) carelessly and negligently failed to yield the right-of-way to approaching trains.” Id.</blockquote>

The trial court dismissed her claims, finding that Joho could not have reasonably anticipated Zokhrabov’s injuries. But, the Illinois Court of Appeals disagreed — holding that it was reasonably forseeable that his carelessness would cause harm to bystanders. The Illinois Appeals Court spelled out the law of negligence:

Ordinarily, a person engaging in conduct that creates risks to others has a duty to exercise reasonable care to avoid causing them physical harm. Restatement (Third) of Torts § 6, cmt. b (2010); Karas v. Strevell, 227 Ill. 2d 440, 451, 884 N.E.2d 122, 318 Ill. Dec. 567 (2008) (“every person owes a duty of ordinary care to guard against injuries to others”). The general rule is that one must act as would a prudent and reasonable person under the circumstances. Restatement (Third) of Torts, § 7, Reporter’s Note, at 85 (2010) (and cases cited therein); Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964) (“every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and *** such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons”).

The court then explained that negligence liability exists for some pretty good reasons. The court explained that we assign blame to the most blameworthy person in a chain of events. Logically, it works this way: In every action you take, there is a risk assessment. If you do something that could cause harm to others, then you should either not do it or you should pay the price if the harm does occur.

The court explained a second rationale — that negligence liability creates an economic incentive to engage in conduct that minimizes the risk to others. Restatement (Third) of Torts § 6, cmt. d (2010).

In this case, the court reasoned that running in front of a train did create a risk of harm to others. The court also found that “the magnitude of the burden imposed by guarding against the harm was insignificant, since Joho needed only to pause, look down the tracks, and then time his crossing accordingly, and that the consequences of placing the burden on Joho would have been minimal.” Id. Therefore, while the risk was remote, the cost of preventing the harm coming from the risk was miniscule. Therefore, Joho had a duty to prevent that harm.

Sensationalizing the case, like “Cafe Mom,” does nothing to educate the public. In fact, it causes great harm. If you make this a “simple” story, you can jump on to the heartstrings of those who feel for Joho and his family. You can further jump onto the keys that resonate in the minds of the idiots who do not understand our tort system — which privatizes enforcement of certain norms which we do not wish to leave to the government. The simple principle is, “you break it, you buy it.” Even if you buy it while you break it.

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9 Responses to What happens when idiots don’t understand torts

This same situation serves as the foundation for the oft-maligned, yet wholly-misunderstood McDonald’s coffee case. It’s trotted out time and time again by folks who think it’s the perfect example of the need for tort reform… yet it’s really a prime example of risk allocation and accepting responsibility for your choices.

Every time someone uses the word “Mom” (or “Dad”) as some sort of general qualification, I can hear Bill Bailey’s mocking takedown of the stupidity that generally follows.

It’s a tragedy for his family, but being killed by your own negligent stupidty doesn’t make it any less stupid. Where I live, drunken/careless drivers have a tendency to run off the road and total themselves against trees. Grieving relatives, unable to accept that the person was responsible for his own accident, blame the tree and demand it be cut down!

So, another railroad injury case arises to once again clear the air on causation: Sorry, but this decision seems to contradict the immortal Palsgraf v. Long Island R.R. Co. authored by the equally immortal Judge Cardozo. The risk perceived sets forth the duty to be observed. Don’t tell us Jiro could have foreseen this injury to the passenger on the other platform any more than the conductor in Palsgraf could have forseen the fireworks he set off would injure Mrs. Palsgraf, way down at the other end of the station platform. “Negligence in the air, so to speak, will not do.” And that goes double for flying body parts.

Well, he could no doubt foresee an injury to himself, but to others? As the first part of the Illinois Appeals Court says:

“Ordinarily, a person engaging in conduct that creates risks to others…”

Frankly I’d assume that when one is hit by a train, you’d pretty much go under it and that would be the end of you – the fact that his body (or at least parts of it) flew some distance and hit innocent bystanders was a surprise to me. And obviously to Ms Zokhrabov.

Is there any word on whether any onlookers or the train driver are able to sue for emotional distress or similar?

The problem in Palsgraf was not the law, which is pretty much spot-on, but the application to the facts. It is hard to predict the actual nature of the resulting injury, but if you push someone across the gap and onto a moving train, injury is at least somewhat likely.

Me: I’d expect that anything dropped into the space where the wheels are has a good chance of being ejected at high speed. Give me that, plus a crowded platform, and I think you probably have foreseeability.

I sat on a jury with somewhat similar off-putting facts. Guy wipes out in front of a trucker. Trucker kills guy. Trucker sues dead guy’s estate. Negligence was stipulated, it wasn’t a stretch to attach liability but what really made the case ugly was that the trucker had already been made whole and then some by his insurer. Between a greedy plaintiff, a sympathetic defendant, and the plaintiff choosing the law firm that advertises on the back of the phone book (literally), They had an uphill battle. Let’s just say plaintiff was right on facts but his award wasn’t worth his time to file.

You may not like the public reaction to the case, but them’s your jurors.

so Marc, it looks like you PACERed it or something, what is she asking for? Medical bills and lost wages or early retirement and loss of consortium?